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Employment Law: Key Update

November 25th, 2014

There have been some interesting developments in the employment field recently. Bhavna Patel has selected a handful that are likely to affect you or your business.

Employee on Maternity Leave Should Have Been Offered Role

The recent case of Woods v Capita Property and Infrastructure Ltd [2014] provides useful insight into an employer’s duties when handling a restructuring exercise in light of the Maternity and Parental Leave Regulations 1999. An employer is required to ensure a suitable available vacancy is offered to an employee who at risk of redundancy and is on maternity leave. Further, the terms and conditions of such employment must not be substantially less favourable to the previous contract.

In this particular case, the company, Capita Property and Infrastructure Ltd, undertook a restructuring exercise which involved amalgamating two roles into one. Ms Woods held one of the roles affected. The process of deciding which job holder would be offered the new role consisted of a selection interview and occurred during Ms Woods’ maternity leave. The other candidate was offered the job and she was dismissed. Ms Woods asserted that: (i) her performance at the interview had been affected by the fact that her newly born child had been seriously ill and she had not had much sleep; (ii) her marks gave no reflection of the contribution she had made during her long service; and (iii) the assessment on the basis of a one hour interview when she was on maternity leave and looking after a sick child was unfair.

Applying the relevant regulations, the Employment Tribunal deemed the dismissal to be unfair. The amalgamated role was a suitable available vacancy so Ms Woods should not have been required to compete for the role but, should simply have been offered it.

Ms Woods’ claim however for direct pregnancy and maternity discrimination under the Equality Act 2010 was rejected. This was because the redundancy decision was based on performance at the interview and the reason was not because of pregnancy or maternity leave.

First Ever Reported Case on Non-Compliance of ACAS Early Conciliation Procedure

In the case of Thomas v Nationwide Building Society [2014], Miss Thomas lodged a whistleblowing detriment claim on 8th August 2014. This type of claim was subject to the new mandatory ACAS Early Conciliation Procedure (ECP); this required her need to provide the details of her claim to ACAS, who would attempt to conciliate and if that failed and she received receives a certificate confirming completion of the ECP she would then be able to issue proceedings in the Employment Tribunal. Miss Thomas thought that she did not have to have an ACAS certificate because the nature of her claim meant she was exempt. However, none of the exemptions applied. The Tribunal ruled that Miss Thomas’s claim was barred from a jurisdictional point of view but could be considered as the Employment Tribunal Rules of Procedure 2013 allows a rejected claim to be accepted if the rejection was based on a defect that has since been rectified. In Miss Thomas’ case, the non-compliance with the ECP was a “defect” capable of being rectified, with the proviso that it will be treated as having been presented on the date of rectification.

By the time the matter was determined by the Tribunal, Miss Thomas’ case had gone through the ECP. She had a certificate confirming its completion on 7th October 2014. As a consequence, Miss Thomas’s was treated as having been presented on that date. However, a further hearing is in the process of being held to consider the question of it being out of time, having been presented on the day it was (i.e. 7th October 2014).

Worker Dismissed Over Facebook Wins Claim

The Mail Online reported that Alan Blue was sacked after he ‘liked’ a posting on Facebook. It appeared to encourage violent behaviour towards a manager.

Mr Blue’s case centered on a Facebook conversation involving a former colleague who had just been dismissed and commented that someone had hit one of the managers with his hard hat. Mr Blue meant to put in “Aye right, u wish” and but hit the “i” button by mistake, so it came up “Aye right, i wish”. It was a genuine typo error, which he did not notice. The conversation, however, went on and someone commented that “I should’ve just f****d him over the head with a chair” to which Mr Blue clicked the “like” button. When questioned about his conduct, Mr Blue said the comment was “just banter” and regarded the exchanges as a closed conversation. His employer, the Foods Standard Agency, rejected this. Mr Blue was dismissed.

An Employment Tribunal upheld Mr Blue’s unfair dismissal claim. In the Tribunal’s view, there was no objective reason to believe that his performance would in the future be different simply because of his foolish participation in what he had mistakenly believed to be a private online conversation that had become more public. Mr Blue was awarded £32,799.13 in compensation.

GPs Confirm New Fit for Work Process Will Help

GPs have confirmed that they would refer eligible patients to a new service to support employers and staff over sickness absence. This is published in a new report by the DWP. The proposed Fit for Work process will start later this year. Its aim is to provide an occupational health assessment and health and work advice to employees and employers, and GPs are expected to help their patients return to or stay in work after an illness.

The DWP’s study “Exploring future GP referral to Fit for Work” looks at how GPs might signpost their patients to the assessment part of the support. Its publication coincides with the renaming of Health and Work Service to Fit for Work to more accurately reflect the nature and impact of the service. Most of the GPs contacted for the study had a positive approach to the relationship between health and work.

Bhavna Patel is an employment law specialist. If you would like to speak to her about any aspect of this article or any employment related matter, please feel free to call her on 01494 773377 or email her at bhavna.patel@lennonssolicitors.co.uk.